Land and Environment Court of New South Wales CITATION : Horvat v Golledge [2009] NSWLEC 1152 APPLICANT Frank Horvat PARTIES : RESPONDENT Kevin and Dianne Golledge FILE NUMBER(S) : 20083 of 2009 CORAM: Thyer AC KEY ISSUES: TREES (NEIGHBOURS) :- Orders made for pruning of deadwood. LEGISLATION CITED: Trees (Disputes Between Neighbours) Act 2006 DATES OF HEARING: 29/04/2009 DATE OF JUDGMENT: 19 May 2009 APPLICANT Frank Horvat, litigant in person LEGAL REPRESENTATIVES: RESPONDENT Kevin and Dianne Golledge, litigant in person JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Thyer AC 19 May 2009 20083 of 2009 Frank Horvat v Kevin and Dianne Golledge JUDGMENT This judgment was reserved. 1 ACTING COMMISSIONER: A Willow Gum tree is growing in the south-western area of the backyard of 157 Bellevue Avenue, Georges Hall. This property is owned by Kevin and Dianne Golledge. The tree was planted 24 years ago in 1985, when the Golledges' youngest child was two years old. This, and the three other gum trees on their property were planted by or for their four children. The Willow Gum tree is located about 2 m from the common boundary of the adjoining property to the southwest. 2 Mr Frank Horvat is owner, and one of the residents of 66 Carnarvon Crescent, Georges Hall, the adjoining property to the southwest. He makes an application under the Trees (Disputes Between Neighbours) Act 2006 to rectify and prevent property damage, and to prevent injury to people. His grandson Mark Horvat is also a resident of 66 Carnarvon Crescent, Georges Hall. 3 The application seeks orders for complete removal of the tree. Claims in the application include: Tree overhanging half our backyard. Several log branches already fallen. Been hit by branches and sticks. It is hanging over our racing pigeon lofts. Several branches have already fallen on top of loft. Anticipated damage to loft, risk of injury or death to pigeons and my family. I've already had branches fall and hit me several times. High risk of tree causing serious or fatal injuries to us on our property. 4 Mr Frank Horvat was present at the hearing but did not speak. He was accompanied by his son in law Robert Ascic, and represented initially by his grandson Mark Horvat. After an adjournment during the hearing to allow them a family conference, Mr Ascic became Mr Frank Horvat's representative. 5 In 2005, Mark Horvat placed a pigeon house against the common boundary, under the tree, and since then frequents that area to look after his racing pigeons. He was first hit by a falling branch a bit more than a year ago and has been hit by about six branches, the largest being about 4 cm thick and 1 m long. He has been hit on the head and was bruised on the shoulder. On one occasion he tripped over a fallen branch in the dark, causing bleeding of his left leg. He has not sought medical attention on any occasion. All of the fallen branches were dead wood in the past, but recently the tree has dropped some live twigs of about 6 mm thickness and 0.5 m length. 6 Kevin and Dianne Golledge attended the hearing. They were accompanied by Mr Edworthy, their adjoining neighbour to the west who has a longer common boundary with Mr Horvat. The Golledges have pruned the tree on various occasions over the years. 7 Apart from inspection by Bankstown City Council's Tree Management officer in May 2008, neither party has had the tree inspected by an arborist. 8 When assessing an application under the Trees (Disputes Between Neighbours) Act 2006 the Court must be satisfied that one or more of the four tests in s 10(2) (a) and (b) of the Act are met by each tree before making an order regarding that tree. These tests are: Has the tree caused damage to the applicant's property ? Is the tree now causing damage to the applicant's property ? Is the tree likely in the near future to cause damage to the applicant's property ? Is the tree likely to cause injury to any person? 9 Only if one or more of these tests is satisfied, can the Court move to consider the discretionary questions of: Is the damage or risk sufficiently serious to warrant the Court intervening? If so, what should the Court order? Who should pay to carry out those orders? 10 Further, before determining an application, the Court is to consider the matters in s 12 of the Act. The tree 11 The letter from Bankstown City Council's Tree Management officer dated 22 May 2008 states: The large Eucalyptus scoparia located at the rear is in sinescence and the tree has large areas of dieback on the ends of branchlets and a section of deadwood within the main trunk area. The tree is considered to be in fair to poor condition and pruning of deadwood and low limbs can be carried out but Council considers that the tree will be in decline and will require further works in the near future . 12 I observed the Willow Gum (Eucalyptus scoparia) to be about 15-20 m tall with crown spread of about 15 m and trunk diameter about 0.6 m. It has upright major branches typical of an immature tree. The branches are well tapered, without heavy end-loading. I did not see any included bark or other indications of branch junction weakness, nor any decay or weakness of the trunk, nor indication that the tree is unstable in the ground. There are some dead twigs and epicormic growth in higher parts of the crown, consistent with drought stress and recovery. There are some dead branches of up to 4 cm diameter in the crown, and a larger dead branch stub on the northern side of the lower trunk. Overall, the tree appears to be in fair to good condition, worthy of retention and possibly having 20 or more years of safe and useful life. 13 I note the difference between my observation and that of the Council, and remind the parties that trees are living organisms that respond to their growing conditions. In this case the tree appears to have made a significant recovery. 14 In relation to overhang of Mr Horvat's backyard; from my view of the site, and from viewing an aerial photograph and other photographs provided in the Golledges' response, I find that the tree overhangs less than one twentieth of Mr Horvat's backyard. Damage and Injury 15 I find on the basis of injuries reported by Mark Horvat, that the tree has caused injury. Also, on the basis of an observed dent in the pigeon house roof that Mark Horvat claims was caused by a falling branch, I find that the tree has caused damage. Further, on the basis of observed dead wood in the crown, and the location of the pigeon house under the tree, I find that the tree is likely to cause damage in the near future and injury. Thus the tree meets the first and third tests in s 10(2)(a) of the Act, and the test in s 10(2)(b) of the Act. Considerations 16 Under s 12 (d) of the Act, I note that the Willow Gum is an Australian native species that is likely to contribute to the local ecosystem. The Golledges' written response states that Bell Birds, Noisy Minors, Wattle birds, Spotted Pardalotes and Rosellas are regularly observed in their yard. 17 Under s 12 (e) of the Act, I note that the tree contributes to the scenic value of the Golledges' property, and the surrounding local area. I also note that the trees provide some privacy between the properties. 18 Under s 12 (f) of the Act, I note that the trees provides intrinsic value through oxygen production, carbon sequestration, cooling summer shade, and deflection and dispersal of strong winds. 19 Under s 12 (h)(i) and s 12 (i)(i) of the Act, I note that a very small area of Mr Horvat's yard is under the tree, and that there was no problem with the tree prior to Mark Horvat placing his pigeon house under the tree. In this case I find that there are many other locations in the Horvat backyard where the pigeon house could be placed rather than under the tree. 20 Under s 12 (j) of the Act, I consider the Golledges' request that any orders of the Court include an order that the pigeon house be moved away from the tree and their common boundary. 21 I note the Golledges' willingness to prune live branches of the tree to reduce overhang of the Horvat yard, or to prune dead wood if ordered by the Court, at their cost. 22 I note the Horvats' offer at the hearing to move the pigeon house further west along their back fence, so it is not under the tree. In this regard I also note Mr Edworth's concern that the pigeons would then be a worse problem for him, and that their flight over his property and droppings on his washing is already a problem. 23 I note that regardless of any Court order in relation to the tree, at the hearing the parties agreed to further discuss the location and management of the pigeons. I recommend that they obtain a copy of the Bankstown City Council Local Orders Policy 2007 – Keeping of Animals (Order 18) Fact Sheet – The keeping of pigeons, to assist in their discussions. Conclusions 24 I find no reason to order removal of the tree, as it appears to now be in fair to good condition. 25 I find that falling deadwood from the tree is likely to cause damage in the near future and injury to persons, so I propose to order that the deadwood be pruned. 26 I will not order a change in location of the pigeon house, as any new location should meet the Local Orders Policy of Bankstown City Council, and be acceptable to affected neighbours. A new location would seem to best be found after consultation with all affected neighbours. Orders 27 The application is upheld in part, and the Court makes the following Orders that apply to 157 Bellevue Avenue, Georges Hall: a. Dead wood with a diameter of greater than 2 cm at its point of attachment shall be pruned from the Willow Gum tree by 31 July 2009, at the Golledges' cost; b. The pruning shall be carried out by an AQF Level 3 arborist with suitable insurances, and the work shall be in accordance with the Australian Standard AS 4373-2007 Pruning of Amenity Trees ; c. Mr Horvat shall grant access over his property to carry out the pruning work; d. The work shall take place at reasonable times, on reasonable notice to Mr Horvat. ___________________ Peter Thyer Acting Commissioner of the Court The formal orders are not included as part of this judgment but a copy may be obtained from the Court's registry upon payment of a fee. Details are available on the Court's web site at http://www.lawlink.nsw.gov.au/lec/ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.